Rietveld v. Wabash R. Co.

• Decision Date: 09 January 1906
• Citation: 129 Iowa 249,105 N.W. 515
• Parties: RIETVELD v. WABASH R. CO.
• Court: Iowa Supreme Court

129 Iowa 249

105 N.W. 515

RIETVELD

v.WABASH R. CO.

Supreme Court of Iowa.

Jan. 9, 1906.

Appeal from District Court, Marion County; James D. Gamble, Judge.

Action at law to recover damages for the death of plaintiff's intestate, who was struck and killed by one of defendant's trains at a highway crossing in Marion county, Iowa. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. Reversed.George S. Grover and Kinkead & Mentzer, for appellant.

DEEMER, J.

Plaintiff's intestate and a companion, who were riding in a standing position in a bobsled, were struck and killed, at a place where a public highway crosses defendant's right of way, by a train which was being operated by defendant's employés. The negligence charged against these employés is failure to sound the whistle and to ring the bell of the engine as it approached the crossing, as required by statute. There is a conflict in the evidence regarding the giving of the statutory signals, and, as the jury settled this conflict in plaintiff's favor, we must treat the case as if the negligence charged was established.

The real question relates to the conduct of plaintiff's intestate at the time of and just before the accident occurred. Was he in the exercise of that care required of him in attempting to cross the right of way ahead of the engine? Plaintiff's intestate and his companion were each instantly killed, and the only eyewitness of the transaction was the engineer of the train which struck and killed the men. This engineer was a witness for the defendant. As bearing upon the question of contributory negligence, the trial court gave the following, among other instructions: “It is a recognized rule of human conduct that persons in their sober senses naturally and instinctively seek to avoid danger. Therefore it must be presumed, until the contrary appears, that the deceased in this case, prompted by this natural instinct, did exercise care in approaching and going upon the crossing in question. But whether the circumstances, as disclosed by the evidence as introduced on the trial hereof, are sufficient to overcome the presumption that deceased, prompted by the instinct of self-preservation, did exercise the care required of him under the law at the time of the injury, is a question for the jury, and for the jury alone, to determine.” This instruction in effect cast the burden upon defendant of showing that plaintiff's intestate was guilty of contributory negligence, and was for that reason manifestly erroneous. Bell v. Clarion, 113 Iowa, 126, 84 N. W. 962. Instruction No. 15 was practically to the same effect, and was erroneous for the same reason. See, also, Golinaux v. R. R. Co. (Iowa) 101 N. W. 465;Salyers v. Monroe, 104 Iowa, 74, 73 N. W. 606.

Defendant asked the following instruction, intended to cover this point, which was refused: “You are instructed that, where there are no eyewitnesses to the accidental killing of a person by a railroad train, the presumption is, in the absence of other evidence and circumstances to the contrary, that the deceased was exercising due care, but this presumption is not conclusive, and may be rebutted by evidence to the contrary; and if then you find, taking into consideration the location of the highway with reference to said crossing, and the distance from said crossing on said highway, from which said approaching train could have been seen, and taking into consideration all other circumstances surrounding said injury, as disclosed by the evidence in this case, you will find that plaintiff's intestate could not have been at or immediately prior to said accident in the exercise of reasonable care on his part, or you find that by the exercise and use of his senses of seeing and hearing he could have discovered the approaching train in time to have avoided injury thereby, with the exercise of reasonable care on his part, then said presumption as to due care is not to be given any weight by you, and, unless there is other evidence from which you can find that plaintiff's intestate did not contribute to said injury by his own negligence, then your verdict should be for the defendant.” This, or something conveying the same thought, should have been given. See Ames v. Transit Co., 120 Iowa, 640, 95 N. W. 161;Beem v. R. R. Co., 104 Iowa, 563, 73 N. W. 1045.

2. In instruction No. 10, the trial court said that a railroad company and a traveler passing over a highway crossing of a railroad right of way have equal rights at the crossing, and that each must be exercised with a view to the rights of the other, and in such a manner as not to interfere with them. This was followed by a statement that, while each have equal rights, the...